QSI, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 1117 (N.L.R.B. 2006)

QSI, INC.
346 NLRB No. 97
1117
QSI, Inc. and United Food and Commercial Workers
International Union, CLC1
Smithfield Packing Company, Incorporated, Tar Heel
Division and United Food and Commercial
Workers International Union, CLC. Cases 11–
CA–20240, 11–CA–20317, 11–CA–20241, and
11–CA–20281
April 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
On April 11, 2005, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. Respon-
dents QSI, Inc. (QSI) and Smithfield Packing Company,
Incorporated, Tar Heel Division (Smithfield), each filed
exceptions and a supporting brief, the Charging Party
filed an answering brief, and Smithfield filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record2
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.4
Respondent QSI provides nightly cleaning services at
Respondent Smithfield’s pork-processing facility located
in Tar Heel, North Carolina. This case concerns the Re-
spondents’ reaction to a November 15, 20035 walkout by
QSI employees to protest, among other things, QSI’s

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 On June 6, 2005, Respondent Smithfield filed an unopposed mo-
tion requesting that the Board accept an original surveillance-camera
videotape and the video cassette recorder necessary to view it. The
original videotape and a copy were introduced into evidence at the
hearing, but Smithfield retained physical custody of the original.
Smithfield argued in its motion, and in its brief in support of excep-
tions, that it was necessary for the Board to view the original videotape.
On January 5, 2006, the Board granted Smithfield’s motion and subse-
quently viewed the original videotape.
3 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 We have modified the judge’s recommended Order in accordance
with our decisions in Excel Container, 325 NLRB 17 (1997), and Fer-
guson Electric Co., 335 NLRB 142 (2001), and to conform to standard
remedial language. We have substituted new notices that reflect these
changes.
5 All dates hereafter are 2003, unless otherwise indicated.
discharge that day of certain managers and supervisors,
including Supervisor Antonio Cruz. The judge found
that the employees’ walkout was protected by Section 7
of the Act and that QSI and Smithfield each committed
numerous violations of Section 8(a)(1) of the Act in re-
sponse to the walkout.6 We agree with all of the judge’s
unfair labor practice findings, although we clarify certain
parts of his rationale, as follows.
1. In concluding that the QSI employees’ walkout was
protected by Section 7 of the Act, the judge found that
the walkout was “a reasonable means of protest under the
Act.” We recognize that, when employees engage in
concerted protest of the selection or termination of a su-
pervisor, certain Federal courts of appeal consider the
reasonableness of the employees’ means of protest in
determining whether the employees’ activity merits Sec-
tion 7 protection.7 However, consistent with the Su-
preme Court’s decision in NLRB v. Washington Alumi-
num Co.,8 “the Board has not imposed a ‘reasonable
means’ requirement on employees’ concerted activity.”
Accel, Inc., 339 NLRB 1052, 1052 (2003); see also
Trompler, Inc., 335 NLRB 478, 480 fn. 26 (2001), enfd.
338 F.3d 747 (7th Cir. 2003). We reaffirm that position
today.
Even were we to apply a “reasonableness” requirement
to the circumstances here, we would affirm the judge’s
finding that the employees’ November 15 walkout was
reasonable. As indicated, a main impetus of the walkout
was Respondent QSI’s discharge of Supervisor Cruz.
The record establishes that Respondent QSI had previ-
ously discharged Supervisor Cruz but, in response to
employee objections, had agreed on November 10 to
rehire him. Thus, when QSI discharged Cruz again on
November 15, the employees reasonably concluded not
only that QSI had reneged on its agreement but also that
further discussion with QSI was an ineffective means of
protest. Cf. Trompler, supra, 335 NLRB at 480–481

6 The judge found that Respondent QSI violated Sec. 8(a)(1) by dis-
charging 14 employees, by physically assaulting employees, by threat-
ening employees with arrest by immigration officials, by threatening
employees with bodily harm, by causing employees to be falsely ar-
rested, and by informing employees that they were discharged because
they engaged in protected concerted activity.
The judge found that Respondent Smithfield violated Sec. 8(a)(1) by
assaulting QSI employees, by threatening QSI employees with arrest by
immigration authorities, by causing QSI employees to be falsely ar-
rested, and by telling a Smithfield employee that he would not be con-
sidered for a promotion or job change to the maintenance department
because of his union activities.
7 See, e.g., Yesterday’s Children, Inc. v. NLRB, 115 F.3d 36 (1st Cir.
1997); NLRB v. Oakes Machine Corp., 897 F.2d 84 (2d Cir. 1990);
Dobbs Houses, Inc. v. NLRB, 325 F.2d 531 (5th Cir. 1963); Bob Evans
Farms, Inc. v. NLRB, 163 F.3d 1012, 1022 (7th Cir. 1998).
8 370 U.S. 9, 16 (1962).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1118
(employee walkout to protest supervisor’s conduct was
reasonable where the employer had failed to address the
employees’ expressed concerns). Further, the employees
had no bargaining representative to present their griev-
ances to QSI; “they had to speak for themselves as best
they could.” Washington Aluminum, supra, 370 U.S. at
14. In addition, there is no evidence that the walkout
posed an immediate threat to the safety or health of oth-
ers.9 See Trompler, supra, 335 NLRB at 480. In these
circumstances, we find, in agreement with the judge, that
the employees’ November 15 walkout was a reasonable
means of protest.
2. In finding that Smithfield’s conduct toward QSI
employees violated Section 8(a)(1), the judge implicitly
rejected Smithfield’s argument that it could not be held
liable for actions taken against employees of another
employer. We agree with the judge for the following
reasons. Section 2(3) of the Act says that “[t]he term
‘employee’ shall include any employee, and shall not be
limited to the employees of a particular employer . . . .”
Thus, the Board “consistently has held that an employer
under Section 2(3) of the Act may violate Section 8(a)
not only with respect to its own employees but also by
action affecting employees who do not stand in such an
immediate employer/employee relationship.” Interna-
tional Shipping Assn., 297 NLRB 1059, 1059 (1990); see
also Fabric Services, 190 NLRB 540, 541–542 (1971).
In this case, Smithfield’s supervisors and agents, includ-
ing its Special Police Force Chief Danny Priest, physi-
cally assaulted and threatened QSI employees because
they engaged in protected concerted activities. Smith-
field was in a position to engage in this conduct because
it owned the property on which the QSI employees
worked. Under the circumstances, Smithfield’s assaults
and threats constituted “action[s] affecting” the QSI em-
ployees. International Shipping Assn., supra. The judge
therefore properly concluded that Smithfield’s conduct
violated Section 8(a)(1).
3. Finally, the judge found that Smithfield violated
Section 8(a)(1) when its maintenance manager, Michael
Norsworthy, threatened Smithfield employee Dan Eng-
lish that he would not be considered for a promotion or
transfer to the maintenance department because of his
union activities. Although Smithfield filed exceptions to
the judge’s finding and legal conclusion, it did not articu-
late, either in its exceptions or briefs, any grounds for
reversing the judge. Accordingly, we find, pursuant to
Section 102.46(b)(2) of the Board’s Rules and Regula-
tions, that Smithfield has effectively waived these excep-

9 The judge found that the walkout by the employees was peaceful
and that the violence that occurred was initiated by the Respondents.
tions. See Holsum de Puerto Rico, 344 NLRB 694 fn. 1
(2005). In any event, we agree with the judge that Nor-
sworthy’s threat to English violated Section 8(a)(1). See,
e.g., Hospital Shared Services, 330 NLRB 317, 318
(1999).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders
A. Respondent, QSI, Inc., Tar Heel, North Carolina, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees because they engaged in
protected concerted activities.
(b) Physically assaulting its employees because they
engaged in protected concerted activities.
(c) Threatening its employees with arrest by Federal
immigration officials because they engaged in protected
concerted activities.
(d) Causing its employees to be falsely arrested be-
cause they engaged in protected concerted activities.
(e) Threatening its employees with bodily harm be-
cause they engaged in protected concerted activities.
(f) Informing its employees that they were discharged
because they engaged in protected concerted activities.
(g) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Julio Vargas, Alfredo Calderon, Pablo Zacarias,
Clemente Paredez, Elizabeth Perez, Leticia Perez Seville,
Roberto Munoz Guerrero, Alejandro Hernandez, Edbin
Perez, Ruben Baltazar, Javier Ramirez, Juan Hernandez
Valesquez, Roberto Hernandez, and Carlos Romero full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make the aforesaid employees whole, with interest,
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
QSI, INC. 1119
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
the Smithfield Packing Company, Incorporated, Tar Heel
Division, facility in Tar Heel, North Carolina, copies of
the attached notice marked “Appendix A.”10 Copies of
the notice, on forms provided by the Regional Director
for Region 11, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
if Smithfield Packaging Company, Incorporated, Tar
Heel Division, has closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since November 15, 2003.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
B. The Respondent, Smithfield Packing Company, In-
corporated, Tar Heel Division, Tar Heel, North Carolina,
its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Threatening its employees that they will not be
considered for a promotion or job change because of
their activities on behalf of the United Food and Com-
mercial Workers International Union, CLC or any other
labor organization.
(b) Assaulting employees because they engaged in pro-
tected concerted activities.
(c) Threatening employees with arrest by Federal im-
migration officials because they engaged in protected
concerted activities.
(d) Causing employees to be falsely arrested because
they engaged in protected concerted activities.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Tar Heel, North Carolina facility copies of the at-
tached notice marked “Appendix B.”11 Copies of the
notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent and all current
and former employees employed by Respondent QSI at
the Respondent’s Tar Heel, North Carolina facility at any
time since November 15, 2003.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge you because you engaged in
protected concerted activities.

11 See fn. 10, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1120
WE WILL NOT physically assault you because you en-
gaged in protected concerted activities.
WE WILL NOT threaten you with arrest by Federal im-
migration authorities because you engaged in protected
concerted activities.
WE WILL NOT cause you to be falsely arrested because
you engaged in protected concerted activities.
WE WILL NOT threaten you with bodily harm because
you engaged in protected concerted activities.
WE WILL NOT inform you that employees were dis-
charged because they engaged in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
as set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Julio Vargas, Alfredo Calderon, Pablo
Zacarias, Clemente Paredez, Elizabeth Perez, Leticia
Perez Seville, Roberto Munoz Guerrero, Alejandro Her-
nandez, Edbin Perez, Ruben Baltazar, Javier Ramirez,
Juan Hernandez Valesquez, Roberto Hernandez, and
Carlos Romero full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make the aforesaid employees whole for any
loss of earnings and other benefits resulting from our
discrimination against them, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of the aforesaid employees, and WE WILL,
within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be
used against them in any way.
QSI, INC.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten that you will not be considered
for a promotion or job change because you support the
United Food and Commercial Workers International Un-
ion, CLC, or any other labor organization.
WE WILL NOT physically assault you because you en-
gaged in protected concerted activities.
WE WILL NOT threaten you with arrest by Federal im-
migration authorities because you engaged in protected
concerted activities.
WE WILL NOT cause you to be falsely arrested because
you engaged in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
as set forth above.
SMITHFIELD PACKING COMPANY, INCORPORATED,
TAR HEEL DIVISION
Jasper Brown Jr., Esq., for the General Counsel.
William P. Barrett, Esq. and Joshua M. Krasner, Esq., for the
Respondent, QSI, Inc.
Gregory B. Robertson, Esq. and Kelli D. Jackson, Esq., for the
Respondent, Smithfield Packing Company Incorporated,
Tar Heel Division.
Renee L. Bowser, Esq., for Charging Party United Food and
Commercial Workers.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me in Lumberton, North Carolina, on
November 1–5 and 9–12, 2004, pursuant to an amended con-
solidated complaint issued by the Regional Director for Region
11 of the National Labor Relations Board (the Board) on July
30, 2004. The complaint as amended at the hearing alleges that
Respondents QSI, Inc. (QSI) and Smithfield Packing Company
Incorporated, Tar Heel Division (Smithfield) violated Section
8(a)(1) of the National Labor Relations Act (the Act). The
complaint is based on charges filed by the United Food and
Commercial Workers International Union, AFL–CIO, CLC (the
Union). The complaint is joined by the answers of QSI and
Smithfield wherein they deny the commission of any violations
of the Act.
Upon consideration of the testimony of the witnesses, the
exhibits admitted at the hearing, and the positions of the parties
as argued at the hearing and as set out in their briefs, I make the
following
QSI, INC. 1121
FINDINGS OF FACT1
A. The Businesses of the Respondents
The complaint alleges and Respondent QSI admits and I find
that at all times material QSI has been a Nevada corporation
with a facility located at Lumberton, North Carolina, where it is
engaged in providing cleaning services for Smithfield Packing
Company Incorporated, at its Tar Heel, North Carolina plant,
that during the past 12 months, a representative period, Re-
spondent QSI purchased and received at its Lumberton, North
Carolina facility goods and materials valued in excess of
$50,000 directly from points outside the State of North Caro-
lina and that Respondent QSI is now and has been an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
The complaint alleges, Respondent Smithfield admits, and I
find that at all times material Respondent Smithfield is now,
and has been a Virginia corporation with a facility located at
Tar Heel, North Carolina, where it is engaged in the manufac-
ture and sale of pork products, that during the past 12 months, a
representative period, Respondent Smithfield purchased and
received at its Tar Heel, North Carolina facility goods and ma-
terials valued in excess of $50,000 directly from points outside
the State of North Carolina, and that at all times material Re-
spondent Smithfield has been an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
B. The Labor Organization
The complaint alleges, Respondents admit, and I find that at
all times material the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
Facts
Smithfield is a major pork processing company in the United
States. It maintains its largest pork processing plant at Tar
Heel, North Carolina. QSI provides cleaning services for
Smithfield at the Tar Heel Plant with a complement of ap-
proximately 250 employees to perform these services. Smith-
field employs approximately 5500 to 6000 employees in the
operation of its plant. The plant is located in an isolated area
near Lumberton, North Carolina. Bladen County where the
plant is located, has only a small Sheriffs Office. Smithfield
maintains its own police force to protect its property and plant.
As a result of Federal and state regulations and Smithfield’s
rules, only authorized persons are permitted within the plant
production area and these individuals must be properly attired
in personal protective and sanitary clothing to ensure the opera-
tion of the plant is safe and its products are processed and
maintained in compliance with sanitary standards set by the
United States Department of Agriculture. Production runs for
the processing of the pork products are scheduled in two shifts
from about 8 a.m. to 11 p.m. The QSI cleaning crews are
scheduled on the third shift after the production runs are com-
pleted and commence their work at 11 p.m. until the cleaning is
completed which may vary from 4 to 6 a.m. The cleaning crews

1 The following includes a composite of the credited testimony and
the exhibits received at the hearing. All dates unless otherwise stated
are in 2003.
are staffed by Spanish-speaking Hispanic employees most of
whom do not speak English.
The management of the cleaning crews in November 2003,
was made up of the Cleaning Crew Operation Plant Manager
Manuel Plancarte, several supervisors, and three safety man-
ager employees who had access to the plant areas being cleaned
and who had the authority to cite cleaning crew employees and
their supervisors for safety violations. In November 2003,
there was some tension between the employees and the safety
managers.
QSI contracted with Smithfield in July 2003, to provide
cleaning services of its plant and equipment. Smithfield re-
placed Mossberg, another cleaning company that had the prior
contract for cleaning services for Smithfield. A number of the
management and supervisory and hourly employees of Moss-
berg were retained by QSI also when it assumed the responsi-
bility for cleaning under the terms of its contract with Smith-
field. QSI has a number of cleaning contracts throughout cer-
tain areas of the country. The hierarchy of QSI is as follows.
QSI’s headquarters is in Chattanooga, Tennessee. QSI is
owned by Bob Bullard, its vice president is Tom Daniels, its
corporate safety manager is Lane Parsons. Its division manager
is Owen Patterson who is over several areas in the States where
QSI operates. Area managers report to the division manager.
In the instant case Eduardo Guzman was the area manager over
five plants in North Carolina, including the QSI operation at
Smithfield’s plant in Tar Heel, North Carolina. The manager of
QSI’s operation at the Tar Heel plant in November 2003, was
Manuel Plancarte, who reported to Area Manager Guzman.
Guzman testified he visited the Tar Heel plant on an average of
once or twice a week. QSI also had a local office in nearby
Lumberton, North Carolina. Reporting to Plant Manager
Manuel Plancartes were floor managers for each of the three
main areas of the plant which were the “kill” department, the
“cut” department, and the “conversion” department. Within
each department were several supervisors who managed a
number of employees. Plancarte had several relatives under his
supervision including his cousin Jorge Rodriguez, the cut floor
manager and Antonio Cruz who was a supervisor in the conver-
sion department. Juan Hernandez Velasquez who worked for
Cruz in the conversion department, is the father of Antonio
Cruz and the uncle of Manuel Plancarte and Rodriguez. Plan-
carte and Rodriguez are cousins of Antonio Cruz and all three
individuals were raised as brothers by Velasquez.
The work of the cleaning employees at the Smithfield plant
can be dangerous as they are cleaning large machinery used for
the processing of the pork products. There have been numerous
accidents suffered by QSI employees over the years in perform-
ing cleaning services involving the loss of life and limbs, cuts,
bruises, and hot water and chemical burns. The operation is
closely monitored by QSI plant supervision, Smithfield plant
supervision, and the QSI safety department. QSI is required to
comply with all applicable United States Occupational Safety
and Health Administration (OSHA) regulations. The entire
operation of the plant is also subject to United States Depart-
ment of Agriculture Department (USDA) rules and regulations.
USDA agents daily inspect and monitor the plant for compli-
ance with USDA rules and regulations before the plant can
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1122
commence operations. In November of 2003, the plant QSI
safety department at the Tar Heel facility was comprised of its
department head Mayra Saucedo, and her assistants, Caesar
Saucedo and Hugo Pasado. Mayra did not report to QSI Plant
Manager Manuel Plancarte but instead reported directly to Area
Safety Manager Ron Salinas and Corporate Safety Director
Lane Parsons at the Chattanooga headquarters.
The work of QSI in cleaning the plant consisted of removal
of animal parts, bones, blood and the like from the machinery
and premises of the Smithfield operation. In order to ensure the
safety of the employees cleaning the facility and equipment,
they are to comply with various lockout and tagout procedures
to ensure that the equipment is unable to suddenly start to run
or operate while the cleaning employees are engaged in their
work. The cleaning shift operates from 11 p.m. to 6 a.m. while
the pork processing operation is not in operation. In November
2003, the QSI employees were paid for 7 hours commencing at
the start of their shift at 11 p.m. However they were allowed to
leave once their work was completed, thus motivating them to
complete their work within what management considered to be
the appropriate time allotted and to enable QSI’s management
and safety department, Smithfield’s Third-Shift Plant Manage-
ment and Superintendent Robert Clayborne, and USDA inspec-
tors to inspect the plant and equipment for their approval for the
start up of the pork processing operation. The opportunity for
employees to leave early once they had completed their work
led to disagreement of the cleaning employees with strict com-
pliance of the safety and lockdown and tagout procedures
which take time to perform properly. The safety department
was insisting on strict compliance with these safety procedures
and was writing up employees and causing their termination for
violations of the safety procedures. Often these employees
were later rehired by QSI’s management but at reduced rates of
pay. Additionally some of the QSI employees believed they
were being photographed while they were performing their
work and were dissatisfied with this. Safety Department Man-
ager Mayra Saucedo denied that the employees were photo-
graphed while performing their work but contended that the
machinery was photographed for maintenance purposes. This
testimony was corroborated by Superintendent Clayborne. The
employees complained to the supervisors who complained to
upper management at the plant level. Additionally, Safety De-
partment Manager Mayra Saucedo complained to supervisors
and management that the employees were not following the
safety rules and urged their discipline. Some employees were
disciplined but at some point, the local plant management be-
came hostile to the safety department’s recommendations and
refused to discipline the employees for safety violations.
Mayra Saucedo testified that she complained to Plant Manager
Manuel Plancarte and to Area Manager Guzman but they took
no action. Mayra Saucedo also had a specific problem with
Supervisor Antonio Cruz2 who she testified openly defied her

2 A number of exhibits (QSI Exhs. 14–21) purporting to document
QSI’s difficulties with Cruz were offered into evidence by Respondent
QSI but rejected by the undersigned because they had not been turned
over pursuant to the Union’s subpoena, specifically Request No. 4 (QSI
Exh. 34). A petition to revoke the Union’s subpoena request was filed
request that he discipline an employee for a safety violation and
taunted her that she would be gone soon as the plant manage-
ment would get rid of her. She testified that other employees
also told her she would be gone soon. In addition she testified
that on several occasions Antonio Cruz came to work smelling
of alcohol and on one occasion she ordered him to go to a drug
testing facility for an alcohol test but that he did not show up
for the scheduled test. She reported this to Plant Manager Plan-
carte who refused to take action against Cruz. Ultimately Cruz
received a 3-day suspension from Assistant Plant Manager
Mike Villaneueva.
On Friday, November 7, Mayra Saucedo telephoned Patter-
son and informed him of the situation regarding Cruz and the
failure of local management to support the safety department.
As a result Patterson telephoned Guzman who was on his way
to visit another plant and told him to discharge Cruz. Guzman
proceeded back to the plant and discharged Cruz and took his
badge and radio and escorted him from the plant. Guzman then
proceeded to travel to another plant. An hour or so later Mayra
Saucedo again called Patterson and informed him that the em-
ployees were walking out. Patterson then called Guzman again
and told him to return to the plant and get the employees back
to work. Guzman removed Mayra Saucedo and her assistants
from the plant. Several employees testified concerning the
walkout. Some employees testified that they were told there
was a fire in another part of the building but were persuaded to
stay once Guzman and others told them to go back to work as
they were not in support of Cruz. Most others remained out
and Smithfield‘s production for the upcoming shift on Satur-
day, November 8 was lost. On Sunday, November 9, Division
Manager Owen Patterson and Corporate Safety Manager Lane
Parsons, who had both traveled from Chattanooga to Lumber-
ton arrived at the plant and met with management of the plant.
The vast majority of the employees were not scheduled to work
on Sunday and only a skeleton crew was required and did per-
form the cleaning work as the plant had been idle on Saturday.
On Monday, November 10, the employees gathered at the
plant prior to the start of the 11 p.m. shift and refused to go to
work at the plant unless their demands were met. They asked
for a $1-per-hour raise for all employees, the reinstatement of
Antonio Cruz and Ruben Baltazar who had been terminated
October 30, and other employees who had been terminated for
safety violations and removal from the plant of the three indi-
viduals in the safety department. Two of the rank-and-file em-

by the Respondent QSI. QSI did not produce these documents. Later
during the hearing Respondent QSI attempted to move the exhibits 14–
21 in evidence and faced opposition from the Union’s attorney. It is
well settled that the Board is entitled to impose a variety of sanctions to
deal with subpoena noncompliance McAllister Touring & Transporta-
tion Co., 341 NLRB 394 (2004). See, e.g., International Metal Co.,
286 NLRB 1106, 1112 fn. 11 (1986), precluding an employer from
introducing into evidence documents it had failed to produce in re-
sponse to the General Counsel’s subpoenas. In Perdue Farms, 144
F.3d 830 at 834 (D.C. Cir. 1998), the court agreed with a dissenting
colleague that “a party who simply ignores a subpoena pending a ruling
on a petition does so at his or her peril.” To the extent that there is any
question, I deny Respondent QSI’s Petition to Revoke and reaffirm my
ruling that QSI Exhs. 14–21 should be and they hereby are rejected.
QSI, INC. 1123
ployees spoke on behalf of the employees. The chief spokes-
persons were Julio Vargas and Edbin Perez. QSI agreed to the
demands and a written agreement was signed by both Division
Manager Owen Patterson and Area Manager Guzman. During
this time many of the managers and supervisors at the plant
including Plant Manager Manuel Plancarte stood by and did not
urge the employees to go to work although both Patterson and
Guzman were urging the employees to return to work. There
was testimony that Plant Manager Manuel Plancarte told the
employees to ask for a $1-per-hour raise. There was also testi-
mony that a meeting had been held on the morning of Novem-
ber 8 after the first walkout at Plant Manager Plancarte’s house
attended by a number of employees at which employee Juan
Hernandez Velasquez had urged employees to ask for a $1-per-
hour raise and encouraged further action so that Smithfield
would cancel the contract with QSI and that the former clean-
ing contractor Mossberg would be brought back.
After QSI had agreed to the employees’ demands they re-
turned to work. QSI complied with the demand to bring Cruz
and Baltazar and other employees who had been terminated
back to their jobs. The safety department employees remained
out of the plant and QSI had committed to the $1-per-hour raise
to be implemented on the next payday. However, Division
Manager Owen Patterson determined in consultation with QSI
Owner Bob Bullard and Corporate Safety Director Lane Par-
sons that the management staff had not properly controlled the
employees and that a substantial number of the management
staff and some rank-and-file employees who supported the
management should be terminated. The management employ-
ees to be terminated included Plant Manager Manuel Plancarte,
Assistant Plant Manager Mike Villanueva, and Cut Floor Man-
ager Jorge Rodriguez. It also included management and super-
vision from the cut and conversion departments and nonsuper-
visory employees such as Edbin Perez deemed loyal to the local
plant managers rather than to QSI. It did not include the man-
agement and supervisory employees from the kill department,
most of whose employees had stayed on the job on the day of
the initial walkout on November 7. Safety Director Mayra
Saucedo testified that Plancarte and other members of man-
agement and supervision of the cut and conversion departments
had secretly met weekly in the hose room in the plant to discuss
how to get QSI removed from the plant and replaced by Moss-
berg. This was denied by Manager Plancarte who testified
these were general work meetings.
Following QSI’s determination to discharge the aforesaid
managers, supervisors, and employees it was decided that this
would be accomplished on Friday, November 14, and Saturday,
November 15. Arrangements were made to bring in replace-
ment supervisors and employees from other plants and areas to
perform the work of the members of management and employ-
ees to be discharged because of QSI’s anticipation that a num-
ber of employees would walk out in protest of the discharges.
These replacement employees were summoned or transported
to the Lumberton area by QSI in the case of the supervisors and
the rank-and-file employees were put up in hotels in the area.
Additionally, QSI notified Smithfield Superintendent Robert
Clayborne of the impending planned terminations and he noti-
fied Special Police Chief Danny Priest. Arrangements were
made by Special Police Force Chief Priest for Smithfield’s
police force to be on the plant premises with additional officers
and security guards on Friday, November 14. Smithfield main-
tains a private armed police department as permitted by North
Carolina state law to protect and monitor its premises and the
surrounding property owned by Smithfield. This is a five-
member police department including its chief, Danny Priest,
and Smithfield’s security manager who also serves as a deputy
for Bladen County as required when he is not engaged on duty
for Smithfield. Bladen County, where the Tar Heel plant is
located, has only a small sheriff’s department consisting of the
sheriff and deputies and part-time deputies to cover the rural
county of Bladen which includes a large square mile area re-
sulting in a slow response time to calls for as long as 45 min-
utes or more. Smithfield perceived the need for its own police
force because of the isolated area of its location and the sheer
number of the approximately 5500 to 6000 people it employs at
the plant and the 250 employees of QSI in the Tar Heel plant
operation. Smithfield also employs several unarmed security
guards to monitor materials and product being trucked in and
out of the plant and to monitor the employees’ entrance to the
plant where employees enter and leave. Smithfield’s police
wear black pants and jackets labeled “police.” The security
guards wear gray pants and shirts. The Bladen County Sher-
iff’s deputies wear brown uniforms. In addition to the ar-
rangements made for replacement employees, QSI obtained
permission to use the Smithfield conference room to meet with
the managers, supervisors, and employees to be discharged.
On Friday, November 14, the cleaning shift began normally
with the employees entering the plant and commencing work.
Patterson and Guzman went to the conference room with Lane
Parsons and Guzman was directed to get Manuel Plancarte,
Villanueva, and Rodriguez which he did after obtaining their
radios from them on the pretense that they were to be given
new radios. Patterson wanted to ensure that these employees
did not use their radios to alert other employees. When these
employees entered the conference room, they were told they
were being terminated and Patterson stepped out of the room
and motioned to Smithfield police who were waiting in another
area in the office where the conference room was located. The
waiting police then escorted the discharged managers out of the
room through the front entrance to the office area eliminating
the need to escort them through the production area of the
plant. Following this, the same procedure was followed in
terminating a second group. Before they were able to terminate
the third group of supervisors to be terminated (which included
Antonio Cruz), Cruz learned of the terminations and alerted the
employees in the plant urging them to walk out and telling the
employees that QSI had fired management. This began an
exodus of most employees from the plant. In this regard the
employees had been engaged in their work in the production
area of the plant and were leaving through the main entrance
and exit by a turnstile which is monitored by the gray uni-
formed security guards. Once outside the employees were met
by Smithfield police who were to escort them to their vehicles
or to require them to vacate the parking lot. Guzman, Parsons,
and Patterson stood at the production area doors (the steel
doors) which led into the hallway and turnstile entrance and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1124
exit area to the parking lot. Guzman and Patterson attempted to
persuade the employees to remain on the job, telling them that
their jobs were secure. According to some testimony of wit-
nesses Guzman and other members of management (Parsons
and Patterson) kept the plant door to the hallway and exit
closed to prevent employees from leaving. A review of a video
from a camera monitoring the area did not disclose any vio-
lence or frenzy but several witnesses indicated that it was a
frenzied scene. At one point Patterson spotted Cruz in the pro-
duction areas and chased after him until Cruz came to Smith-
field’s superintendent, Clayborne. While chasing Cruz, Patter-
son was knocked down and sprayed with high volume hoses of
hot water by employees Roberto Munoz Guerrero and Pablo
Zacarias who testified they thought he was going to hurt their
friend Antonio Cruz. They also testified that he (Patterson) was
carrying a knife as he chased Cruz. Cruz testified only that it
was a shinny object. I credit Patterson’s testimony that he did
not have a knife. Cruz was removed from the plant. Neither
the discharge of Cruz or the other management employees is
alleged as a violation of the Act. However, there are a number
of allegations of violations of the Act arising during the walk-
out and from QSI’s discharge of rank-and-file employees and
from QSI’s acts in attempting to prevent the employees from
leaving the plant as well as from the arrest of employee Roberto
Munoz Guerrero. Individuals in the production area are re-
quired by the U.S.D.A. to wear helmets, caps, hair nets,
smocks, raincoats, steel-toed boots, and ear plugs and beard
nets if they have a beard. These rules apply to everyone.
U.S.D.A. inspectors are in the plant until the departments shut
down after the second shift and come back in the plant prior to
the beginning of production several hours later. They have the
authority to shut down the plant for such violations as the fail-
ure of individuals to wear safety equipment in the production
area.
The issues as framed by the complaint are:
1. Whether Respondent QSI violated Section 8(a)(1) of
the Act by its discharge of employees Julio Vargas, Al-
fredo Calderon, Pablo Zacarias, Clemente Paredez, Eliza-
beth Perez, Leticia Perez Seville, Roberto Munoz Guer-
rero, Alejandro Hernandez, Edbin Perez, Ruben Baltazar,
Juan Hernandez Velasquez, Roberto Gonzalez Hernandez,
Carlos Romero, and Javier Ramirez.
2. Whether Respondent QSI violated Section 8(a)(1) of
the Act by physically assaulting employees.
3. Whether Respondent QSI violated Section 8(a)(1) of
the Act by threatening employees with arrest by Federal
immigration authorities.
4. Whether Respondent QSI violated Section 8(a)(1) of
the Act by causing its employees to be falsely arrested.
5. Whether Respondent QSI violated Section 8(a)(1) of
the Act by threatening employees with bodily harm.
6. Whether Respondent QSI violated Section 8(a)(1) of
the Act by informing its employees that they were dis-
charged for engaging in protected concerted activities.
7. Whether Respondent Smithfield violated Section
8(a)(1) of the Act by threatening its employee that he
would not be considered for a promotion or job change
because of his union activities.
8. Whether Respondent Smithfield violated Section
8(a)(1) of the Act by assaulting QSI employees.
9. Whether Respondent Smithfield violated Section
8(a)(1) of the Act by causing QSI employees to be falsely
arrested.
10. Whether Respondent Smithfield violated Section
8(a)(1) of the Act by threatening QSI employees with ar-
rest by Federal Immigration authorities.
Contentions of the Parties
The General Counsel contends that on the night of Novem-
ber 14 and specifically in the early morning hours of November
15, Respondent QSI terminated several groups of its local man-
agers at the Tar Heel plant in Respondent Smithfield’s confer-
ence room. During the course of these terminations, the em-
ployees suddenly and extemporaneously began to walk out of
the plant in protest of the managers’, supervisors’, and employ-
ees’ discharge. Respondents engaged in a combined effort to
stifle the employees’ engagement in lawful protected activities
and thereby violated Section 8(a)(1) of the Act.
The General Counsel relies on the testimony of several em-
ployee witnesses and others in support of the allegations of
unlawful conduct by the Respondents. Employee Ruben Balta-
zar testified that as the employees were working on the night of
November 14, they became aware that the supervisors were not
present on the work floor and someone announced that a new
supervisor was taking over. The employees gathered together
and decided to leave the plant. As they walked toward the
doors of the production area of the plant where the employees
had been working, the doors out of the production area of the
plant were blocked by Area Manager Guzman and other man-
agers. Guzman pushed Baltazar out of the production area and
told the employees that immigration was there and would take
them back to their country. Employee Pablo Zacarias testified
that in the early morning hours of November 15, he turned his
hose on Division Manager Patterson to prevent him from going
for his knife as he (Patterson) ran after Supervisor Antonio
Cruz. Zacarias then went to the exit door where a group of
employees were gathered. Guzman had closed the door and
was preventing employees from leaving the plant. Guzman
stood with two other managers and a policeman as they blocked
the door. Guzman told the employees that immigration was
waiting at the door. Guzman grabbed his (Zacarias’) hair and
pushed him toward the wall. He was finally able to get outside
the plant and encountered the special police who told him to
leave immediately or he would be arrested.
Employee Roberto Munoz Guerrero testified that as he at-
tempted to leave the plant in the early hours of November 15,
he was met by Guzman and Chief Priest at the exit door where
a large group of employees had gathered and that Guzman was
preventing employees from leaving the plant and was telling
employees that immigration was outside and would take them if
QSI, INC. 1125
they left. He also heard Chief Priest say the word immigration
but did not recall what else he said.3
Employee Javier Ramirez testified that on the morning of
November 15, he was working upstairs and went downstairs to
the exit door to see what was happening as he had noticed the
employees leaving the plant. He saw Guzman and several QSI
managers holding the exit door to prevent employees from
leaving. He also observed special police dressed in black were
helping Guzman hold the exit door to prevent employees from
leaving. He observed Supervisor Abel Briones arrive at the exit
door and that Guzman cracked the door open to allow Briones
to leave. As the door opened to allow Briones to leave, a group
of employees pushed him (Ramirez) against the wall and two
special police grabbed him by his belt. Guzman then pushed
him against the wall. He fell to the floor and injured his leg.
He then went back to the production area. After a while he left
the plant and special police took his identification badge. He
also testified that during the encounters at the door he heard
Guzman tell employees that if they went outside, immigration
would take them.
Employee Edbin Perez testified that on the night of Novem-
ber 14, he was working in the “hot room” in the plant. He was
approached by Guzman, and a manager, the employees referred
to as “Cebollo” (Patterson) and two policemen in the early
morning hours of November 15. Guzman cursed him and then
all of the men hit him and took him to a dark room. The police
placed handcuffs on him before they took him to a room where
the employees change uniforms. Guzman said that they had
signed a contract with the employees and did not want (Perez)
to come back to the plant. He was then pushed out of the plant
and Guzman and the others said that immigration was outside
and they were going to report him to immigration. He testified
further that at some point in this incident that Guzman, Cebollo
(Patterson), and the two policemen tried to put him in a trash-
can. Ultimately he was placed in a police vehicle, driven to his
vehicle, gave the police his identification badge and was al-
lowed to leave. Perez also testified that at some point Guzman
said that Perez was being put out of the plant because he asked
for a “little raise.”
Employee Juan Hernandez Velasquez, who is the father of
Antonio Cruz, testified that between 3 and 3:30 a.m. on No-
vember 15, he and other employees started running toward the
exit doors. When he arrived in the exit area he was met by
Guzman who was coming into the production area. Guzman
told two policemen to “take this Mexican outside.” The two
policemen took each of his arms and escorted him outside the
plant. They took his identification badge. He then went to one
of the special police officers and asked him to help Cruz. The
policemen then grabbed him by the arm and told him to leave.
As he left the plant, he heard Guzman and the other managers
who were near the exit doors say that immigration was outside.

3 Respondent QSI’s unopposed motion to correct the transcript is
granted. The transcript is amended to reflect that Luis Pacheco an-
swered affirmatively when asked by Respondent QSI whether the dis-
charged managers were threatening employees with arrest by immigra-
tion.
Employee Roberto Gonzales Hernandez testified that as he
and other employees left the plant on November 15, he heard
Guzman say that immigration was outside. He saw that the
police had one of his fellow employees whom he referred to as
“Chesfras” and was afraid because they were saying immigra-
tion. He ran so excitably to get away that he attempted to vault
a fence on the parking lot rather than using the openings in the
fence and fell and cut himself. As he ran he was chased by two
policemen in blue or black uniforms.
Employee Carlos Romero testified that as he attempted to
walk out on November 15 and arrived at the exit door, Guzman
announced that no one could leave. However after the manag-
ers pushed Supervisor Antonio Cruz outside, he was able to get
out of the plant, and saw four police officers standing where
employees were exiting the plant. He walked to his vehicle and
was accompanied by a police officer in a black uniform. As he
opened the door to his vehicle, the police officer said, “Hurry
up, immigration is coming.”
The General Counsel notes that in response to these allega-
tions, Area Manager Guzman denied that he had blocked the
door to prevent employees from leaving the plant and denied
having said anything about immigration. He denied having
pushed, kicked, or hit any employee during the walkout. He
specifically denied having pushed Baltazar or having grabbed
Zacarias’ hair, or having pushed Ramirez, or that he grabbed
and hit Edbin Perez. He did however acknowledge that he and
Patterson took Perez out the back door of the plant rather than
going through the normal employee exit doors. Guzman stated
that he and Patterson took Perez out of the back door because it
was closest to the office and locker room. However he did not
testify that either he, Patterson, or Perez were ever in the office
or locker room on the morning of November 15. The General
Counsel urges that Respondent QSI’s failure to demonstrate
this connection in the face of overwhelming evidence that prac-
tically all of the employees left the plant through the normal
exit doors, lends itself to a finding of suspicious behavior at the
least. Guzman also denied having put Perez in a trashcan and
having told Perez that he was being thrown out because he
asked for a raise. Guzman admitted that Perez was a strong
supporter of the local management team and that he (Guzman)
felt that Perez was responsible for the employee walkout and
that he (Guzman) met with a large group of 140–150 employ-
ees and spoke with Julio Vargas and Edbin Perez who spoke on
behalf of the employees. Guzman also denied having told secu-
rity officers to remove Velasquez from the plant. QSI’s Corpo-
rate Safety Manager Lane Parsons also stood at the exit doors
with Guzman and Patterson on the morning of November 15,
during the walkout. Parsons denied that he engaged in any
physical assault or threatened any employees with arrest by
immigration authorities. He did acknowledge that the walkout
and the Respondent’s response created a very chaotic situation.
The General Counsel further notes that Division Manager
Patterson stood at the exit doors with Guzman on the night of
November 15 and acknowledged that a group of 30 to 40 em-
ployees had already gathered at the exit door when he arrived.
Patterson stated he stood between the employees and the door
but did not push or shove any employees. He left the area to
run after Cruz in the plant and acknowledged that after catching
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1126
Cruz, he grabbed him by his collar, cursed him, and forcibly
removed Cruz from the plant. He admitted that when he re-
moved Cruz from the plant by physically walking him through
the exit doors there was a group of employees standing there
who observed this.
The General Counsel notes that in contrast to the testimony
of Guzman and Patterson that there was no pushing and shov-
ing at the exit door, the testimony of several security officers
reflects a more boisterous incident. Security officer James
Daniels who was stationed right outside the exit door to the
production area, stated that while he could not see the events at
the door, he heard a lot of hollering behind the exit doors.
Daniels stated that right after hearing the loud hollering noise,
the employees ran out of the doors. Security officer Ernest
Featherson confirmed that several special police were standing
in the area of the turnstile where employees exit the plant on
the night of November 15. Security officer Ralph Abramo
testified that he observed QSI managers escort three or four
employees out of the plant that night. Security officer Warren
Spahn McLean testified that on the night of this walkout, as he
worked at his security post, one of the QSI managers brought
an employee out of the plant and told him “this guy needs to
go.” McLean then got a special police officer who escorted the
employee out of the plant. McLean testified that he had been
instructed on that evening to position himself at the entrance of
the turnstiles and to make sure no one else was allowed back
into the plant. The General Counsel contends that McLean’s
testimony is in sharp contrast to Guzman’s denial that he ever
instructed any security officer to remove an employee from the
plant. Chief Priest testified that he observed QSI managers
escorting employees out of the plant on the night of this walk-
out. The General Counsel notes that in response to those alle-
gations Respondent Smithfield’s special police and security
officers summarily denied having physically assaulted or
threatened employees during the November 15 walkout. These
officers also summarily denied having threatened employees
with arrest by Federal immigration authorities on the night of
the walkout. The Charging Party Union in its brief argues in
support of the General Counsel’s position as set out above.
Respondents QSI and Smithfield contend that the employee
witnesses called by the General Counsel and Charging Party
gave conflicting and implausible testimony which should not be
credited. They contend that the testimony of QSI management
employees and in particular Guzman, Patterson, and Parsons
and also Chief Priest should be credited wherein they denied
the blocking of the production exit doors to stop the employees
from walking out on the morning of November 15 and they
denied the issuance of threats of immigration authorities wait-
ing to arrest them and denied engaging in physical assaults and
unlawful discharge of the employees.
With respect to the videotape offered into evidence by Re-
spondent Smithfield, there is no doubt that it is incomplete and
that the imagery was distorted. There are several individuals
seen leaving from the production area in an apparently orderly
fashion. However, as the Charging Party notes in her brief this
portion of the videotape for the time period of 2:45 to 4 a.m.
shows less than 50 employees leaving the facility. The record
bears out that the vast majority of the 150 plus employees left
prior to this in a frenzied manner following Respondents’ ef-
forts to prevent them from leaving the production area.
Analysis
I find that the testimony of the employees as set out above as
bolstered by the testimony of Smithfield’s security guards
should be credited. I recognize that there are some inconsisten-
cies in the testimony by the employees as to how many police-
men and or security officers were on the scene. I find however
that the crux of their testimony that they were the recipients of
Guzman’s attempts to block their exit from the production area
and the threats issued by Guzman that they would be or were
fired if they left the production area and Guzman’s threats of
arrest by Federal immigration authorities and the threats issued
by Smithfield’s special police and the physical assault on cer-
tain of the employees should be credited. I do not find the tes-
timony of Edbin Perez to be so far fetched as to be unworthy of
belief. This is particularly so as Guzman admitted that for
some unexplained reason Edbin, an acknowledged supporter of
the local plant management had been discharged that morning.
Guzman admitted that virtually all of the other employees left
by the normal employee exits but that Perez was taken out of
the back of the plant. Guzman also conceded that he had in-
tended to fire Perez, a rank-and-file employee that morning.
This is inconsistent with the testimony of Patterson and
Guzman that it was certain of the management employees who
were to be discharged. Moreover, there is no explanation as to
why any of the employees were discharged except for their
termination reports which labeled them as “bad employee” or
“bad attitude” and noted that they were “striker(s).”
Physical Assault of Employees
I credit the testimony of Pablo Zacarias that as Guzman
pushed to keep employees from leaving the plant he grabbed
Zacarias’ hair and pushed him toward the wall. I credit the
testimony of Javier Ramirez that as he attempted to leave the
plant he was pushed against the wall by a group of employees
and two special police grabbed him by his belt and that
Guzman then pushed him toward the wall. I credit the testi-
mony of Edbin Perez that he was taken out of the plant by a
rear exit rather than the normal exit through which all of the
other employees left the plant and was hit, handcuffed, and
taken to a dark room, and that the police attempted to put him
in a trashcan and then placed him in a police car and took him
to his vehicle where he gave the police his identification and
was then allowed to leave. While I recognize the trashcan inci-
dent sounds bizarre, I noted the short physical stature of Perez
and find it would be possible to put him inside of a large trash-
can. I credit the testimony of Juan Velasquez that he was
grabbed by the arm by a police officer and taken out of the
plant after Guzman told two policemen to “take this Mexican
outside.” I do not find that Guzman’s own Mexican heritage
necessitates a finding that he would not have made this state-
ment. I credit the testimony of Roberto Gonzales Hernandez
that he was chased by two police officers and attempted to vault
a fence to get away, thus injuring himself.
Although I recognize that this entire situation appears bi-
zarre, I find that Guzman was apparently desperate to keep the
QSI, INC. 1127
employees working in the plant so as not to incur an additional
loss of production and incur additional contractual penalties
under its contract with Smithfield. I find the testimony of the
employee witnesses as set out above was mutually corrobora-
tive and demonstrated the intentions of QSI and Smithfield to
prevent the walkout by physical means if necessary. I find it is
also noteworthy that in the prior Smithfield case Chief Danny
Priest was found to have engaged in violence perpetrated upon
employee union supporters. In the instant case before me it
appears that Priest increased Smithfield’s on-duty security force
in anticipation of trouble, although on both the November 7
walkout and the November 10 refusal to go to work until their
demands were met, there was no evidence whatsoever of any
violence or misconduct on behalf of the employees. I thus find
that Respondents violated Section 8(a)(1) of the Act by their
engagement in physical assaults against the QSI employees.
The Threats that Employees would be Arrested by Federal
Immigration Authorities
I credit and find the cumulative corroborative testimony of the
employees concerning these threats support findings of violations
of Section 8(a)(1) of the Act. Threats of resort to contacting
Federal immigration authorities are inherently coercive as “they
place in jeopardy not only the employees’ job and working con-
ditions, but also their ability to remain in their homes in the
United States,” Viracon, Inc., 256 NLRB 245, 247 (1981); Mid-
Wilshire Health Care Center, 342 NLRB 520, 524 (2004).
The Arrest of Roberto Munoz Guerrero
In his brief, the General Counsel recounts the testimony of
employee Roberto Munoz Guerrero that he was finished with
his work about 3 or 3:30 a.m. and saw employees leaving the
plant. He also saw Supervisor Antonio Cruz running toward
him while being chased by another man (Patterson). He testi-
fied he saw the man take a knife out of his pocket. Guerreo
then pushed Patterson to help Cruz get away from Patterson.
He then turned his pressure hose on Patterson to push the knife
away from him. Another employee whom he knew as “Ces-
pita” (Pablo Zacarias) also turned his pressure hose on Patter-
son. Guerreo testified that five other employees came to his aid
as Patterson was about to retaliate against him. Guerrero then
joined the other employees as they attempted to leave the plant.
At the exit door from the production area he saw Guzman,
Chief Priest, and several other supervisors. He testified that
Guzman told the employees that immigration was outside and
would take them away. He testified that the police were also
blocking the door to prevent employees from leaving. He testi-
fied that Guzman pointed at him and told the police to arrest
him. He was able to get outside of the plant and told Juan
Velasquez (the father of Cruz) that Cruz had been chased by a
man with a knife in the plant. He testified that he remained
outside for about half an hour and then proceeded to his vehicle
in the parking lot. At that point Chief Priest told him to stop.
He did so and turned around to face the chief. At that point the
police grabbed him, threw him on the ground and arrested him.
They handcuffed him and took him to the Bladen County police
station. He testified that Chief Priest also took his wallet and
stepped on it. He denied that he had been asked to leave the
property and had refused to leave. His case was set for trial and
was dismissed by the trial judge after a second motion for a
continuance by the prosecuting attorney was denied.
Patterson denied that he had a knife as he was chasing Cruz,
but testified he had a radio and attachments which he may have
put in his hand while he chased after Cruz. I credit his testi-
mony in this regard. Guzman denied that he told the police to
arrest Guerrero. Chief Priest testified he did not observe any
pushing or shoving by the special police. He testified he
moved from the turnstile area to the area outside the plant. He
testified he ordered bilingual officer Hector Mariscal to tell
employees in Spanish who had gathered near the canopy out-
side the plant to return to work or go home. After Mariscal
made this announcement the employees began to disperse.
Priest testified that Guerrero was with a group of employees on
the grass near the canopy and that he told the group to leave the
property. He testified the group would walk a short distance
and then stop and turn around and that Guerrero said he needed
to go back inside the plant to get his keys but that he told Guer-
rero that he could not go back in the plant. He testified that
Guerrero again walked a short distance and stopped and said he
needed his wallet. Priest testified he told the group they would
have to leave the property at least 10 times. He warned Guer-
rero he would be arrested and Officer Shaw then stepped in and
handcuffed Guerrero.
The General Counsel asserts that “Chief Priest and his police
force at the plant have had a history of engaging in false arrest
during labor disputes. In this regard, the Board recently upheld
the finding of an administrative law judge that Chief Priest
falsely arrested an employee during the 1997 election held at
the plant” citing Smithfield Packing Co., 344 NLRB 1, 7
(2004).
I credit the testimony of Guerrero as set out above. I found
his testimony to be consistent and logical notwithstanding his
incorrect observation that Patterson was carrying a knife. I note
that Guzman was at the exit door from the production area and
was able to observe Guerrero’s actions on behalf of Cruz who
was being chased by Patterson which would explain why he
singled out Guerrero and told Priest to arrest him. I found
Guerrero’s version of the arrest incident to be credible and
logical. Conversely, I do not credit Priest’s assertion that Guer-
rero was insisting on returning to the plant to retrieve his keys
and refused to leave for this reason. I find implausible Chief
Priest’s testimony that on the one hand he had instructed the bi-
lingual officer to tell the employees to return to work or go
home and on the other hand that he would refuse to permit
Guerrero to retrieve his keys or wallet (presumably necessary to
permit him to drive his vehicle in order to leave the plant area).
It appears to me that Guerrero would have been placed in an
untenable situation wherein he was told to leave but was denied
the means to comply (his keys and wallet). I find it more likely
that Priest was complying with Guzman’s earlier order to arrest
Guerrero. I thus find that Respondents Smithfield and QSI
violated Section 8(a)(1) of the Act by the arrest of Guerrero
because of his engagement in protected concerted activities in
support of the walkout of November 15.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1128
Respondent QSI’s Discharge of Employees Because
they Engaged in Protected Concerted Activities
The undisputed evidence presented by the General Counsel
in this case establishes a clear prima facie case that the Respon-
dent QSI discharged its employees Julio Vargas, Alfredo
Calderon, Pablo Zacarias, Clemente Paredez, Elizabeth Perez,
Leticia Perez Seville, Roberto Guerrero, Alejandro Hernandez,
Edbin Perez, Ruben Baltazar, Javier Ramirez, Juan Velasquez,
Roberto Hernandez, and Carlos Romero because of their par-
ticipation in the walkout of employees in the morning of No-
vember 15. The evidence establishes that the employees
walked out in support of their supervisors who were being ter-
minated on the morning of November 15. Documentation of
the reasons for the discharge of most of the employees—Julio
Vargas, Alfredo Calderon, Pablo Zacarias, Clemente Paredez,
Elizabeth Perez, Leticia Perez Seville, Roberto Guerrero, Ale-
jandro Hernandez, Edbin Perez, Ruben Baltazar, Javier Rami-
rez, Juan Velasquez, Roberto Hernandez, and Carlos Romero—
is clear from Respondent QSI’s records of the termination re-
ports of the employees which list the reasons for their dis-
charges. Respondent QSI issued employee termination reports
for employees Edbin Perez, Roberto Guerrero, Pablo Zacarias,
Alfredo Calderon, Julio Aquero, Alejandro Hernandez, Leticia
Perez Seville, Elizabeth Perez, Clemente Paredez, and Ruben
Baltazar. On each of these termination reports the date of ter-
mination is listed as November 15, 2003, with the last day
worked as November 14, 2003. On each of these termination
reports “Discharge” is checked off as the reason for termination
and on almost all of the termination reports the words “Bad
employee Striker” are listed under the heading entitled, “If
other than lack of work, explain in detail the circumstances of
the separation.” On the termination report of Alfredo Calderon,
the detail of the circumstances of the separation is listed as
“Unsafe, Bad Attitude, Striker, etc.” On the termination report
of Ruben Baltazar, the detail of the circumstances of the separa-
tion is listed as “Bad Employee—unsafe.” All of the termina-
tion reports were signed by Guzman on November 20, 2003,
and list the date of the termination as November 15, 2003, and
the last day worked by the employee as November 14, 2003.
All of the termination reports are checked off as “NO” under
the question on the report, “Would the employee be considered
for rehire?” QSI did not present any evidence at the hearing to
substantiate any other reason for the termination of these strik-
ers. Nor did QSI present any evidence to substantiate that Al-
fredo Calderon was “Unsafe . . . .” Nor did QSI present any
evidence to substantiate that Ruben Baltazar was—“unsafe.”
Baltazar had only been returned to work 2 days earlier from his
discharge of October 30, 2003, following the agreement be-
tween QSI and the employees on November 10, 2003. All of
the above termination reports constitute clear admissions that
these employees were discharged for engaging in the strike of
the employees on November 15, 2003. In addition, employees
Julio Vargas, Alfredo Calderon, Pablo Zacarias, Clemente
Paredez, Elizabeth Perez, Leticia Perez Seville, Roberto Guer-
rero, Alejandro Hernandez, Edbin Perez, Ruben Baltazar, Javier
Ramirez, Juan Velasquez, Roberto Hernandez, and Carlos Ro-
mero testified that as they left the plant during the November
15 walkout, they were told by Guzman that they were fired.
Additionally, employees Carlos Romero and Roberto Gonzalez
Hernandez testified that they went to the QSI office in Lumber-
ton and were told that they had been terminated. Guzman de-
nied that the employees had been discharged and contended
that Respondent made some efforts to call back certain of the
strikers but was unable to reach many of them. The evidence
clearly establishes that the employees engaged in the concerted
activity of the walkout in support of the local management and
their fellow employees who were being terminated on the
morning of November 15. Employees who walk out in protest
of the discharge of a supervisor are engaged in protected con-
certed activity and are protected by Section 7 of the Act. Thus,
their discharge violates Section 8(a)(1) of the Act. Southern
Pride Catfish, 331 NLRB 618, 620 (2000), citing NLRB v.
Oakes Machine Corp., 897 F.2d 84, 89 (2d Cir. 1990), as fol-
lows:
[C]oncerted activity to protest the discharge of a supervi-
sor . . . may be “protected” provided the identity of the su-
pervisor is directly related to terms and conditions of em-
ployment.
Whether employee activity aimed at replacing a super-
visor is directly related to terms and conditions of em-
ployment is a factual inquiry, based on the totality of the
circumstances, including (1) whether the protest originated
with employees rather than other supervisors; (2) whether
the supervisor at issue dealt directly with the employees;
(3) whether the identity of the supervisor is directly related
to terms and conditions of employment; and (4) the rea-
sonableness of the means of protest.
I find that the evidence supports a finding that the walkout of
November 15 originated with the employees in protest of the
termination of their managers and supervisors including Anto-
nio Cruz who dealt directly with the employees. I find that the
management and supervisors were identified and perceived by
the employees to support their position that the issuance of
warnings and discipline by the safety department were unfair
which was directly related to terms and conditions of employ-
ment. Moreover, by virtually all accounts the walkout by the
employees was peaceful and a reasonable means of protest
under the Act. The violence that occurred was initiated by
Respondent QSI’s management and the Smithfield special po-
lice. The incident involving the chase of Cruz was initiated by
Patterson. The assaults on the employees were initiated by
Guzman and the special police. I find that the General Counsel
has established a prima facie case that the above-named dis-
criminatees were engaged in protected concerted activities
when they engaged in the walkout of November 15. I find that
Respondent discharged these employees because of their en-
gagement in the walkout which was protected concerted activ-
ity. I find Respondent has failed to establish any reasons for its
discharge of these employees other than their engagement in
the walkout. Respondent has thus failed to rebut the prima
facie case by the preponderance of the evidence.
Respondents QSI and Smithfield contend that the evidence
supports a finding that the strike occurring on November 7, the
refusal to go to work on November 10, and the strike on No-
vember 15, were all fomented and led by certain of QSI’s man-
QSI, INC. 1129
agement employees who were supervisors under the Act and
that all of these concerted activities were thus not protected by
Section 7 of the Act as supervisory employees are not protected
by Section 7 of the Act. They cite the close familial relation-
ship of the Plant Manager Plancarte and Jorge Rodriguez and
Cruz who were all raised as brothers by Juan Hernandez Val-
asquez who is the father of Antonio Cruz and the uncle of
Manuel Plancarte and Jorge Rodriguez. Respondents rely on
the testimony of former Safety Director Mayra Saucedo who
testified she overheard Plant Manager Plancartes’ setting up a
meeting of certain of QSI’s supervisors in the conversion and
cut departments which she contends was motivated by the pro-
duction management’s desire to rid the operation of the safety
department’s line of authority to monitor safety practices and
enforce OSHA and plant safety rules. I find there is some sup-
port for the conclusion that certain of the QSI’s management at
the plant were so motivated and were instrumental in urging the
production employees to engage in the aforesaid concerted
activities. However, I find that at the bottom of this was the
employees’ dissatisfaction with the safety department’s over-
view of their work to ensure that OSHA and plant safety rules
were being followed and with the safety department’s imposi-
tion of discipline on the employees for safety violations. The
first walkout on November 7 and the refusal to go into the plant
on November 10, occurred because the employees wanted a
raise and wanted the reinstatement of employees who had been
discharged. With respect to the walkout of November 15, the
employees were engaged in a walkout that indeed appears to
have been in opposition to the firings of the supervisors. The
Respondent’s contend that the supervisors are not entitled to the
protection afforded rank-and-file employees by Section 7 of the
Act. However, it is also well established by Board law cited
supra that employees’ concerted activities on behalf of supervi-
sors who have been discharged by an employer are protected
under Section 7 of the Act. Moreover, at bottom of the unrest
of the employees was their dissatisfaction with the monitoring
of their work and discipline imposed for safety violations by
the safety department. This concerted activity was clearly pro-
tected by the Act.
Respondent Smithfield’s Threat to Employee Dan English
Former Smithfield employee Dan English was employed by
Respondent Smithfield in the sanitation department. He was
active on behalf of the Union in its organizational campaign at
the Smithfield plant. In late November 2003, he attended a
union rally in Fayetteville, North Carolina. In mid-December,
his picture appeared in the Fayetteville Observer newspaper
with a caption under his picture, “Smithfield worker, union
organizer.” In early December he learned of a job opening in
the maintenance department and talked to Supervisor Don Wil-
liamson who told him he needed someone with electrical ex-
perience. He asked Williamson to speak to his supervisor con-
cerning his qualifications. Within 2 days of this conversation,
he was in the breakroom with three other employees. Mainte-
nance Manager Michael Norsworthy came in and told English
that he had seen his picture and the newspaper article. English
then said, “I guess the maintenance job is out.” He testified
that Norsworthy then spoke negatively about the Union. Nor-
sworthy testified he was asked about a job in the case ready
department by English and that he then started laughing and
told English he would not touch him with a 10-foot pole if he
had a target on his back.
I find that under either version, Norsworthy’s comments to
English were an obvious threat of negative consequences be-
cause of English’s participation in the union campaign. This
threat had a reasonable tendency to coerce English and interfere
with his Section 7 rights to support a labor organization. This
threat was inherently coercive as Norsworthy was in a position
to deny English’s request for the maintenance job. Frontier
Hotel & Casino, 323 NLRB 815, 816 (1997); Williamhouse of
California, Inc., 317 NLRB 699 (1995). I find that Respondent
Smithfield violated Section 8(a)(1) of the Act by the aforesaid
threat.
CONCLUSIONS OF LAW
1. The Respondents QSI, Inc. and Smithfield Packing Com-
pany Incorporated, Tar Heel Division are employers within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent QSI, Inc. violated Section 8(a)(1) of the Act
by its discharge of employees Julio Vargas Aquero, Alfredo
Calderon, Pablo Zacarias, Clemente Paredez, Elizabeth Perez,
Leticia Perez Seville, Roberto Munoz Guerrero, Alejandro
Hernandez, Edbin Perez, Rubin Baltazar, Juan Hernandez
Valasquez, Roberto Gonzalez Hernandez, Carlos Romero, and
Javier Ramirez.
4. Respondent QSI violated Section 8(a)(1) of the Act by
physically assaulting employees.
5. Respondent QSI violated Section 8(a)(1) of the Act by
threatening employees with arrest by Federal immigration au-
thorities.
6. Respondent QSI violated Section 8(a)(1) of the Act by
causing employee Roberto Munoz Guerrero to be arrested.
7. Respondent QSI violated Section 8(a)(1) of the Act by
threatening employees with bodily harm.
8. Respondent QSI violated Section 8(a)(1) of the Act by in-
forming its employee Edbin Perez that he was discharged for
engaging in protected concerted activities.
9. Respondent Smithfield violated Section 8(a)(1) of the Act
by assaulting QSI employees.
10. Respondent Smithfield violated Section 8(a)(1) of the
Act by causing QSI employee Roberto Munoz Guerrero to be
falsely arrested.
11. Respondent Smithfield violated Section 8(a)(1) of the
Act by threatening QSI employees with arrest by Federal im-
migration authorities.
12. Respondent Smithfield violated Section 8(a)(1) of the
Act by threatening its employee Dan English that he would not
be considered for a promotion or job change because of his
union activities.
13. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1130
THE REMEDY
Having found that the Respondents QSI, Inc. and Smithfield
Packing Company have engaged in violations of the Act, it will
be recommended that they cease and desist therefrom and take
certain affirmative actions to effectuate the purposes and po-
lices of the Act and post the appropriate notices, to be printed in
both English and Spanish.
It is recommended that Respondent QSI offer immediate rein-
statement to Julio Vargas Aquero, Alfredo Calderon, Pablo
Zacarias, Clemente Paredez, Elizabeth Perez, Leticia Perez
Seville, Roberto Munoz Guerrero, Alejandro Hernandez, Edbin
Perez, Rubin Baltazar, Juan Hernandez Valasquez, Roberto Gon-
zalez Hernandez, Carlos Romero, and Javier Ramirez to their
former positions or to substantially equivalent ones if their for-
mer positions no longer exist. The above employees shall be
made whole for all loss of backpay and benefits sustained by
them as a result of QSI’s unlawful discharge of them and its fail-
ure to reinstate them. Respondent shall also remove from their
files all references to the unlawful actions taken against them.
All backpay and benefits shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987), at the “short term Federal Rate” for the underpayment
of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
[Recommended Order omitted from publication.]